Security is commonly used as a risk management instrument in such dealings. Therefore, familiarity with the specifics of cross-border taking and enforcing of security in various jurisdictions can help companies safely conduct businesses outside their home countries.
Responding to the companies’ need to have current, easy-to-use information relative to secured transactions in the jurisdictions where they do business, the legal practices of Deloitte released recently a Guide to Cross-Border Secured Transactions. The Guide was prepared based on research conducted during 2012-2013 and includes country-specific information provided by local lawyers. It is intended to be a tool for creditors and security providers in addressing the complex issues related to cross-border transactions.
The preparation and structuring of the Guide has been coordinated by the Banking & Finance team of Reff & Associates, member of Deloitte Legal in Romania. “Preparing the Guide was a successful collaboration exercise with our colleagues in the 27 contributing countriesacross Europe, South America and South East Asia which resulted in structured, easy to use information covering relevant legal issues for taking and enforcing security across borders”, said Andrei Burz-Pinzaru, Head of the Banking & Finance practice in Reff & Associates, member of Deloitte Legal.
Selected topics of the Guidecover types of available security, assets subject to security, obligations that may be secured, publicity, perfection and validity requirements, cost of set-up and publicity of security, concerns and prohibitions for granting/taking security, enforcement issues and the secured creditor’s position in case of insolvency of the security provider.
“There are several take-aways from our report, but to me the most relevant is the importance of addressing the local law specifics at the structuring phase of each cross border transaction, whether a corporate reorganization, M&A or loan restructuring. The substantial differences across the jurisdictions covered by our Guide may mean, in some cases, opportunities for enhanced creditor protection or, on the contrary, risks triggered by defenses available to the collateral provider. These are best addressed by local experts as early as possible, as the transaction dynamics and duration could be significantly affected.” said Simina Mut, Associate Partner, Reff & Associates, member of Deloitte Legal.
The Guide also includes comparison charts which illustrate the differences across the jurisdictions in terms of costs and timing for security registration, duration and effects of challenges on security enforcement.
How does Romania compare to the other jurisdictions?
In terms of timing required for immovable mortgages registration, the average duration of the formalities in Romania is approximately the same as in Croatia, England and Wales, Italy, Latvia or Luxembourg. It is however longer than in Bulgaria, Ukraine, Germany or Slovenia, but significantly shorter than in Serbia, Poland, Czech Republic, France or Spain.
For movable assets, Romania, together with Bulgaria and Thailand have the fastest registration regime, significantly swifter than, for instance, Poland, Czech Republic, Serbia, Slovenia, Belgium, Finland or England and Wales.
As regards costs, for immovable mortgages, in about half of the jurisdictions surveyed, the notary fees are not related to the value of the secured amount (e.g. in Belarus, Bulgaria, Finland, Lithuania, Poland, Serbia or the Netherlands). In Romania, similarly to Chile, Croatia, Czech Republic, Hungary, Italy, Luxembourg and Spain, notary fees charged depend on the secured amount. However, in Spain, for instance, in certain cases the amount of the fee may be subject to agreement and in Italy the notary may reduce the amount of the fee at its discretion.
Security registration for movable assets is free of charge in the Netherlands and the costs are relatively immaterial most jurisdictions (including in Romania), except in Belgium in certain cases, as well as in Luxembourg, where registration fees are charged as a percentage of the secured amount.
Timing for security enforcement also varies significantly: for real estate mortgages, the minimum procedural terms in Romania are among the shortest, similar to Belarus and France, but longer than in Latvia or in Chile. The longest duration of the enforcement process identified is in Italy (exceeding three years), followed by Ukraine (two to three years) and Finland, Slovenia and Thailand (between one and two years).
